Informative notes

Technically, the label may be optional (assuming a choice between several possible options for one type of information or another), but if it is legally required that said information be included in Form 290, the financial institution must complete the Form with the information it has on that information field, in all cases. That is, if you have it, you cannot choose whether to declare it or not.

Section 2.a) of Article 2 of the Agreement between the Kingdom of Spain and the United States of America for the improvement of international tax compliance and the implementation of the Foreign Account Tax Compliance Act - FATCA (Foreign Account Tax Compliance Act), signed in Madrid on May 14, 2013, establishes the information to be provided for each of the accounts subject to information reporting, with the Annex to Order HAP/1136/2014, of June 30, approving Form 290, detailing the content of the information that Form 290 must contain.

For example, the type of account holder must be provided or it must be indicated whether a particular account has been cancelled, although this is information that corresponds to an optional label in Form 290.

No. The amount of the "Income of funds" field of form 291 ( annual information declaration of the Income Tax for Non-Residents. Accounts of non-residents without a permanent establishment ) does not correspond to the one that must be declared in the "Interests" field of Form 290.

This is because the “Income of funds” field is defined in Form 291 as the total annual amount by sum of entries to the credit of the account or sum of credits, which does not strictly correspond to the concept of interest, as this is the total gross amount of interest paid or owed on the account during the calendar year or other relevant reference period.

When considering whether or not to record this value in Form 290, the following must be taken into account:

• The account number is not limited to the IBAN or ISIN codes, but may be different depending on the category of financial account involved.

• Only in the event that the financial institution does not have any unique identifier, functional equivalent or numbering

  that allows you to identify the declared financial account, you must include the characters "NANUM".

• If “NANUM” was entered because the information is aggregated by client in its databases, the financial institution must provide the identification numbers of the accounts considered individually since this aggregation is not correct in accordance with the applicable regulations.

In short, the use of the value “NANUM” must be considered exceptional, and should only be recorded in those cases in which the financial institution does not have the identification code for the financial account in question.

The regulatory basis for the above is found in the following sections:

Article 2.2.(2) of the Agreement between the Kingdom of Spain and the United States of America for the improvement of international tax compliance and the implementation of the Foreign Account Tax Compliance Act - FATCA (Foreign Account Tax Compliance Act), made in Madrid on May 14, 2013, when determining the information that must be obtained and exchanged, indicates that this consists, among others, of: " b) The account number." the account number (or equivalent functional element in the absence of an account number) ”

Similarly, the Annex to Order HAP/1136/2014, of June 30, approving Form 290, within the content of the annual information declaration of financial accounts of certain US persons, establishes in its section 8 that the messages transmitted by financial institutions to the AEAT must contain a:

 “ Account number . It may consist of an IBAN, ISIN, the reference number of a cash value insurance contract or an annuity contract or any other identifying code used by the financial institution required to report information.”

Therefore, the account number is not limited to IBAN or ISIN codes, but may be different depending on the category of financial account, and only in the event that no unique identifier of the declared financial account is available, it must include the characters "NANUM" (no account number).

No. The NilReport element is optional.

However, according to what is indicated in the Technical Manual for the presentation of Model 290, available in the Electronic Office, if a declaration is presented NilReport para un periodo, no podrá presentarse ninguna declaración con AccountReports para ese periodo hasta que el NilReport sea anulado (FATCA3). Del mismo modo si se han presentado AccountReports para un periodo no podrá presentarse una declaración NilReport para ese periodo hasta que todas las AccountReports sean anuladas (FATCA3). Por último, tampoco se acepta un segundo NilReport para una misma Institución Financiera (ReportingFI) y ejercicio, si ya se aceptó un NilReport.

Access to the manual on the presentation through Web Service

The IRS in its recent Notice 2023-11 offers relief to financial institutions that have not been able to obtain a U.S. TIN for certain pre-existing accounts that are reportable U.S. accounts. The primary purpose of Notice 2023-11 is to ensure that failure to report U.S. TINs does not result in financial institutions being deemed to have engaged in significant non-compliance with their obligations under the FATCA Agreement. To do so, financial institutions must follow the procedures set out in the Notice.

(See question What obligations must a financial institution meet in order to benefit from the flexibility allowed by Notice 2023-11 published by the IRS?) .

This flexibility is applicable to submissions made in 2023, 2024 and 2025.

For more information, you can consult the full content of the Notice (Notice 2023-11) at the following link:

Foreign Financial Institution Temporary US Taxpayer Identification Number Relief (irs.gov)

Pursuant to Sections 3.03 and 3.04 of Notice 2023-11, a financial institution may report a pre-existing account without a U.S. TIN and not be determined to be in material noncompliance if it meets the following conditions:

1. Declare the date of birth of the individual and controlling person holder for whom a US TIN has not been obtained.

2. Makes an annual request to the holder, for any TIN not provided, under the conditions indicated below. To satisfy the annual request requirement, the financial institution may choose the form of communication it considers most appropriate to contact the holder.

   In the request or communication to the holder, the financial institution must necessarily include either of the following two contents:

   • the IRS web address with the link to the IRS FAQs ( https://travel.state.gov/content/travel/en/international-travel/while-abroad/Joint-Foreign-Account-Tax-Compliance-FATCA-FAQ.html )

   • a copy of the FAQs above and either a copy of the IRS's relaxed procedures for such citizens, or the following address for such procedures ( https://www.irs.gov/individuals/international-taxpayers/relief-procedures-for-certain-former-citizens ).

   This obligation will begin to be enforceable for the presentations of the year 2024 .

   In any case, the financial institution must retain records of the policies and procedures applied to comply with these annual requirements until the end of 2029.

3. Conducts an annual electronic search of its databases for missing U.S. TINs. This obligation will become effective for 2024 filings.

4. Declare, in case the US TIN is not provided, with the explanatory codes included by the IRS in its frequently asked question Q6 Reporting (see question How is the TIN (US tax identification number) field completed when it is not available?) .

   Please note that this notification does not prevent the competent US authority from finding significant non-compliance for failure to meet obligations other than obtaining and reporting the US TIN of pre-existing accounts.

   For more information, you can consult the full content of the Notice (Notice 2023-11) at the following link:

   Foreign Financial Institution Temporary US Taxpayer Identification Number Relief (irs.gov)

Section 3.05 of Notice 2023-11 also establishes a series of obligations for the AEAT, which affect financial institutions and account holders:

• Financial institutions shall not discriminate against U.S. citizens who provide a U.S. TIN.

• U.S. citizens residing in Spain must provide their U.S. TIN to financial institutions upon request.

• Financial institutions that have been identified by the competent US authority as potentially non-compliant will be subject to appropriate control measures by the AEAT, in order to ensure compliance with FATCA regulations.

1. When the entity holding the account is a Non-Financial Entity and provides a tax residence declaration in which the only missing data is whether it is active or passive.

   No. The omission of stating the active or passive condition of the entity does not oblige the Financial Institution to block the account. All of this without prejudice to contacting said entity to complete the declaration with said information.

   It should be noted that the status of Passive Non-Financial Entity carries with it the obligation to identify the persons who exercise control ( substantial owners ).

2. When the person holding ownership or control of the account provides a tax residency declaration that lacks the tax identification number, if it has been issued by the United States of America.

   Yes. The tax identification number is an essential piece of information for the aforementioned declaration and must always appear therein, in accordance with the provisions of section 2 of article 7 of Order HAP/1136/2014, of June 30, approving Form 290.

In the event that the person holding ownership or control of the financial account continues to fail to provide the required declaration, despite having made a total block on it, the Financial Institution must communicate the account with each and every one of the data available at that time, as long as this circumstance continues. All of this, without prejudice to contacting said person to provide the aforementioned declaration.

Regarding the date of birth of the financial account holder (or, where applicable, of the persons exercising control), if the field is not filled in by leaving it blank, a warning message will be displayed indicating this circumstance, so that you can take the appropriate actions to try to obtain this information. The aforementioned notice will be displayed regardless of whether the US Tax ID number is filled in or not.

Please note that, in order to benefit from the flexibility allowed following the publication by the IRS of Notice 2023-11, it is essential to complete the date of birth of the individual holder or the controlling person.

You can consult the FAQ What obligations must a financial institution comply with in order to benefit from the flexibility allowed by Notice 2023-11 published by the IRS?

Yes, the US TIN (NIF) is mandatory under Royal Decree 1021/2015, Third Additional Provision, so all efforts must be made in accordance with Due Diligence to obtain it.

Accordingly, the US TIN of the Account Holder or, where applicable, of the persons exercising control (Substantial Owners) must be reported.

The Account Holder or Substantial Owner's TIN must follow the US format. If you do not have it, you must put the “TIN” tag in the XML and you can fill in the TIN with some of the numerical codes provided by the IRS (Internal Revenue Service) if the reason for its absence corresponds to any of the circumstances specified by this agency (see the question How do I fill in the TIN field when I do not have it?).

In this regard, it is recommended to consult the frequently asked questions Q3 and Q6 published by the IRS (FATCA-FAQs General-Reporting), at the following links:

We are a Model 1 FFI and the TIN relief provided under Notice 2017-46 regarding treatment of preexisting accounts will expire with the reporting of the 2019 data. Do we need to report all required TINs when we provide 2020 and future tax year data?

We are a Model 1 FFI and have not obtained a US TIN for an account as required in the 2020 data. Are there TIN codes we can use to populate the TIN field where we have not yet been able to obtain the TIN due to specific circumstances?

US TIN format

The content of the TIN label when it is American must conform to the following formats:

• Nine consecutive digits without dashes or other separations (e.g., “123456789”)

• Nine digits with two hyphens, a hyphen after the third digit and another hyphen after the fifth digit (e.g., “123-45-6789”)

• Nine digits with a hyphen after the second digit (e.g., “12-3456789”)

• It will not be accepted when completed in the following manner: 000000000 or when certain numerical patterns such as 123456789 and 987654321 are entered.

Consequences of non-compliance

Regarding consequences (frequently asked question Q3 published by the IRS (FATCA-FAQs General-Reporting), failure to complete the US TIN does not automatically lead to a determination of significant non-compliance with the FATCA Agreement; Although the IRS will take into account the facts, circumstances and causes that led to the non-completion of the TIN, and whether the financial institution has adequate procedures and the efforts made to obtain such information.

However, if such situation is ultimately found to constitute a material noncompliance with the FATCA Agreement, and such errors are not corrected before the IRS takes appropriate action, including withdrawing the financial institution's Global Intermediary Identification Number (GIIN) from the IRS, then the 30 percent withholding rate will apply to U.S.-sourced payments made to the financial institution

In May 2021, the IRS published the Q6 Reporting FAQ, including a list of codes detailed below.

In January 2023, this FAQ has been modified by updating the aforementioned list of codes, which are also included in this FAQ.

Without prejudice to the details explained below, it should be noted that, with respect to the codes to be used to complete the TIN label:

• During 2023, submissions using both codes prior to Notice 2023-11 (published in May 2021 FAQ 6 Reporting) and those updated after Notice 2023-11 (published in January 2023 FAQ 6 Reporting update) will be accepted.

• As of 01/01/2024, only submissions with updated codes following Notice 2023-11 (published in January 2023 FAQ 6 Reporting update) will be accepted.

In the event that the US TIN of the Account Holder or the person exercising control (Substantial Owner) could not be obtained, and said TIN is required, the following numerical codes provided by the IRS may be used to complete the TIN label, provided that any of the circumstances listed below apply:

1.2.1 Pre-existing Accounts:

• Pre-existing account of an individual whose identification of being a U.S. citizen is only the place of birth in the United States: “222222222“/ “222-22-2222“ / “22-2222222“.

• Pre-existing account of a legal or natural person whose indicia of being a U.S. citizen are other than the place of birth in the United States: “444444444“ / “444-44-4444“ / “44-4444444“, in addition to any of the following events:

  • A change in circumstances has occurred such that the self-certification or other documentation initially obtained is considered incorrect or unreliable, and no new self-certification or other documentation has been obtained.

  • The account initially did not exceed the reporting threshold and has subsequently exceeded it, without self-certification or other documentation having been obtained.

• Specific cases for pre-existing accounts: 

  1. Pre-existing legal entity account with a balance exceeding $1,000,000 for which foreign ENFP holder no self-certifications have been obtained, and no US indications have been identified in relation to its controlling persons. “666666666“ / “666-66-6666“ / “66-6666666“.

  2. Pre-existing accounts for which the TIN is not available and the account has been inactive or “dormant” but remains above the reporting threshold, also known as “dormant accounts”: “777777777“ / “777-77-7777“ / “77-7777777“.

     For reference, the United States defines “dormant account” in U.S. Treasury Regulation §1.1471-4(d)(6)(ii).

1.2.2 New Accounts:

• New account for an individual whose identification as an American is the United States place of birth:         “333333333“ / “333-33-3333“ / “33-3333333“, in addition to any of the following facts:

  • A change in circumstances has occurred which means that the self-certification initially obtained when opening the account is considered incorrect or unreliable, and a new self-certification has not been obtained.

  • The account did not exceed the declaration threshold at the time of opening and subsequently exceeded it, without obtaining a self-certification.

• New account for a legal or natural person whose identification of being an American is other than the place of birth in the United States: “555555555“ / “555-55-5555“ / “55-5555555“, in addition to any of the following events:

• • A change in circumstances has occurred such that the self-certification or other documentation initially obtained is considered incorrect or unreliable, and no new self-certification or other documentation has been obtained.

  • The account did not exceed the declaration threshold at the time of opening and has subsequently exceeded it, without obtaining a self-certification or other documentation.

The use of these numerical codes provided by the IRS does not exempt the entity from continuing to develop the efforts necessary to obtain the US TIN. For example, you must contact the account holder annually to request the U.S. TIN.

In any other case, the code AAAAAAAAA may be used.

Furthermore, the provision of any of the above codes will not prevent the IRS from reporting an error indicating that the stated value is invalid for a particular record, since the US TIN will still not be properly completed.

NEW for 2023 and subsequent years:

The IRS, in its recent Notice 2023-11, offers flexibility to financial institutions that have not been able to obtain a U.S. TIN for certain preexisting accounts that are reportable U.S. accounts if the procedures outlined in that notice are followed. (See questions What is the purpose of IRS Notice 2023-11? Does it apply to all types of accounts? and What obligations must a financial institution meet in order to benefit from the flexibility allowed by IRS Notice 2023-11? ).

Likewise, in January 2023, the IRS has updated the frequently asked question Q 6 Reporting, with the updated numerical codes to be completed on the TIN label.

• During 2023, submissions using both codes prior to Notice 2023-11 (published in May 2021 FAQ 6 Reporting) and those updated after Notice 2023-11 (published in January 2023 FAQ 6 Reporting update) will be accepted.

• As of 01/01/2024, only submissions with the updated codes following Notice 2023-11 (published in January 2023 FAQ 6 Reporting update) will be accepted, as detailed below.

Using these codes will allow the IRS to better understand the facts and circumstances underlying the failure to complete the U.S. TIN. The update of the TIN field codes (US Tax ID) and its requirements and conditions are as follows:

1.2.1 Pre-existing Accounts:

• “222222222“/ “222-22-2222“ / “22-2222222“: Pre-existing account of an individual whose identification of U.S. nationality is only the United States place of birth, other than an account declared with the code “000222111.” This code takes priority if any other code (other than 000222111) might also apply.

• “000222111” / “000-22-2111” / “00-0222111”: Pre-existing depository account of an individual whose identification of being a United States citizen is only the place of birth in the United States. In addition, the FI must determine that the account holder is a resident of the jurisdiction where the account is maintained for tax and anti-money laundering purposes. For reference, “deposit account” is defined in the Agreement between the Kingdom of Spain and the United States of America (FATCA (BOE-A-2014-6854)). This code takes precedence if any other code might also be applicable.

• “444444444” / “444-44-4444” / “44-4444444” : Pre-existing account of a legal or natural person whose indications of being an American are other than the place of birth in the United States and also have one of the following facts:

  • There has been a change in circumstances that has resulted in one or more U.S. indicia being associated with the account or the self-certification or other documentation initially obtained being deemed incorrect or unreliable, and no valid self-certification or other documentation has been obtained subsequent to the change in circumstances.

  • The account did not exceed the declaration threshold on the date of determination provided for in the Agreement between the Kingdom of Spain and the United States of America (FATCA) and developed in the Order creating Form 290, and has subsequently exceeded it, without having obtained a self-certification or other documentation.

• Specific cases for pre-existing accounts:

  1. “ 666666666 “ / “ 666-66-6666 “ / “ 66-6666666 : Pre-existing legal entity account with a foreign ENFP holder with one or more controlling persons for whom self-certifications have not been obtained, and no US indicia have been identified in relation to any of the controlling persons.

  2. “777777777” / “777-77-7777” / “77-7777777”: Inactive or “dormant” pre-existing account. This is a pre-existing account that does not have a TIN and has been inactive or “dormant,” but remains above the reporting threshold, also known as a “dormant” account. A “dormant account” is one that meets the definition set forth in U.S. Treasury Regulation §1.1471-4(d)(6)(ii) and that has not had any financial activity for three years, except for the accounting of interest. If multiple TIN codes may apply to an account, the other applicable TIN code will take priority.

1.2.2 New Accounts:

• “333333333” / “333-33-3333” / “33-3333333”: New account for a natural person whose indications of being an American are the place of birth in the United States, and also any of the following facts:

  • A change in circumstances has occurred which means that the self-certification initially obtained when opening the account is considered incorrect or unreliable, and a new self-certification has not been obtained.

  • The account did not exceed the declaration threshold at the time of opening and subsequently exceeded it, without obtaining a self-certification.

• “555555555” / “555-55-5555” / “55-5555555”: New account for a legal or natural person whose indications of being an American are other than the place of birth in the United States, and any of the following facts also apply:

  • A change in circumstances has occurred such that the self-certification or other documentation initially obtained is considered incorrect or unreliable, and no new self-certification or other documentation has been obtained.

  • The account did not exceed the declaration threshold at the time of opening and has subsequently exceeded it, without obtaining a self-certification or other documentation.

1.2.3 Cases other than the above:

• “999999999” / “999-99-9999” / “99-9999999”: This code will be used for any account for which the FI cannot obtain the TIN and none of the other codes described above apply. Use of this code implies that the FI has completed its review of accounts without U.S. TINs and has in good faith applied TIN codes to the records where appropriate.

The use of these numerical codes provided by the IRS does not exempt the entity from continuing to develop the efforts necessary to obtain the US TIN.

Additionally, entering any of the above codes will not prevent the IRS from reporting an error that the reported value is invalid for a particular record, since the US TIN will still not be properly filled out.

The error notification will provide 120 days to correct the incidents, in accordance with Article 5.1 “Minor errors and administrative errors” of the Agreement between the Kingdom of Spain and the United States of America (FATCA) (section 4.2.2 of the Competent Authorities Agreement between the United States and Spain). Consistent with the FATCA Agreement (and the TCA if applicable), if a TIN is not provided within 120 days, the United States will evaluate the data received (including whether the FI meets the conditions set forth in Notice 2023-11) and whether there is a significant non-compliance based on the facts and circumstances (See question Reporting FAQ #3 for details on the significant non-compliance procedure).